18 U.S.C. § 1028A: The Mandatory 2-Year Consecutive Sentence, How It Is Used in Silicon Valley Cases, and What Defense Options Exist
One charge. Two years. Mandatory. Consecutive. No exceptions.
That is the core of 18 U.S.C. § 1028A aggravated identity theft. The statute exists not primarily to punish identity theft on its own but to add an automatic, unchallengeable 2-year sentence on top of any other federal conviction involving the use of another person's identity. The judge cannot reduce it. The prosecutor cannot waive it after conviction. Cooperation credit does not apply. Once a § 1028A count results in a conviction, those 2 years are locked in to be served after whatever other sentence was imposed.
In San Jose, the Northern District U.S. Attorney's Office charges § 1028A in a wide range of cases from tech sector data breaches and account takeovers to tax fraud schemes using stolen SSNs, immigration document fraud, and financial fraud involving Silicon Valley professionals. The charge is a prosecutor's leverage tool: the credible threat of a mandatory additional 2 years drives plea negotiations in ways that no discretionary enhancement can match.
Whether you are searching for an identity theft attorney in San Jose, trying to understand how the mandatory consecutive sentence works in the Northern District, or researching defenses under § 1028A, The Bulldog Law covers federal fraud and identity theft defense on criminal defense blog and has defended these cases throughout the Northern District.
How 18 U.S.C. § 1028A Works Every Element Matters
Section 1028A makes it a federal crime to knowingly transfer, possess, or use, without lawful authority, a means of identification of another person, during and in relation to any felony listed in the statute. Three elements create three independent defense opportunities.
Element 1: Means of Identification of Another Person
The statute defines ‘means of identification' broadly: any name, Social Security number, date of birth, official government-issued ID number, unique biometric data, unique electronic identification number, or telecommunication identifying information of another person. The critical requirement established by the Supreme Court in Flores-Figueroa v. United States (2009) is that the identification must belong to a real, actual other person. Using a completely fabricated identity does not satisfy this element.
Element 2: Knowing Use Without Lawful Authority
The government must prove the defendant knowingly used the identification without lawful authority. Under Flores-Figueroa, the government must also prove the defendant knew the means of identification belonged to a real person not just that the identification information was real. This knowledge requirement is the most powerful defense tool in many Northern District identity theft cases, particularly in immigration-related cases where defendants obtained documents from brokers without knowing they contained a real person's information.
Element 3: During and In Relation to a Listed Predicate Felony
Section 1028A only applies when the identity theft occurs during and in relation to one of the predicate felonies listed in the statute. The most common predicates in San Jose Northern District cases are:
- Wire fraud (18 U.S.C. § 1343)
- Mail fraud (18 U.S.C. § 1341)
- Bank fraud (18 U.S.C. § 1344)
- Tax fraud (26 U.S.C. § 7201)
- Immigration document offenses (18 U.S.C. § 1546)
- Access device fraud (18 U.S.C. § 1029)
THE CONSECUTIVE RULE: The 2-year sentence under § 1028A runs consecutively to any other sentence it cannot be reduced, suspended, or served concurrently. Multiple § 1028A counts stack: each adds another mandatory 2 years. A defendant convicted of wire fraud (3 years) plus two counts of § 1028A faces a minimum of 7 years. This stacking effect is why eliminating the § 1028A count entirely is the highest-priority objective in any case where it is charged.
Identity Theft Prosecution in Silicon Valley's Northern District
Tech Sector Data Breach and Account Takeover Cases
San Jose's position at the center of the global technology industry creates identity theft prosecutions that do not exist elsewhere. Insider data breaches at tech companies employees who exfiltrate customer account credentials, steal colleague SSNs for fraudulent purposes, or access user databases for financial gain are prosecuted in the Northern District as wire fraud plus § 1028A. The Secret Service and FBI's Cyber Division handle these investigations in coordination with corporate security teams and forensic vendors who have already built significant evidentiary records before law enforcement is ever contacted.
Tax Refund Fraud Using Stolen SSNs
IRS Criminal Investigation's San Jose Field Office prosecutes tax identity theft cases involving the use of stolen Social Security numbers to file fraudulent refund claims. Santa Clara County's large and diverse workforce makes it a recurring target for these schemes. Tax refund fraud cases are charged as wire fraud plus § 1028A, with each fraudulent return potentially generating a separate § 1028A count. The mandatory consecutive structure means that defendants with multiple fraudulent returns face rapidly accumulating mandatory minimum time.
Immigration Document Cases
Santa Clara County's large immigrant population generates significant § 1028A prosecutions arising from the use of another person's Social Security card, work authorization document, or immigration identification to obtain employment or government benefits. Under Flores-Figueroa, these cases turn on whether the defendant knew the document contained a real person's identifying information not just that the document was false. Many defendants who obtained documents from brokers genuinely did not know the SSN or identity number belonged to a real person.
Financial Fraud and Account Takeover
Credit card fraud, mortgage fraud, and bank account takeover schemes in Santa Clara County generate § 1028A charges alongside the underlying bank fraud or access device fraud counts. The Northern District's Financial Crimes section handles these prosecutions with support from the Secret Service and FBI's Cyber Division. We challenge the chain of evidence connecting our client to specific uses of identity information and the attribution of digital activity to a specific individual.
Where Federal Identity Theft Cases Are Prosecuted in San Jose
Federal identity theft charges under 18 U.S.C. § 1028A are prosecuted in the Northern District of California, San Jose Division:
U.S. District Court Northern District of California, San Jose Division
280 South First Street, San Jose, CA 95113
U.S. Attorney's Office, San Jose Branch: 150 Almaden Boulevard, Suite 900, San Jose, CA 95113
Identity theft cases in the Northern District are handled by the Financial Crimes and Cyber section of the U.S. Attorney's Office in coordination with IRS Criminal Investigation, the Secret Service, and the FBI's Cyber Division. The Bulldog Law appears regularly in the San Jose federal courthouse and knows the prosecution teams who handle these cases.
Defense Strategies for § 1028A in the Northern District
The Bulldog Law's federal white collar defense practice attacks § 1028A charges on every available front the knowledge element, the predicate felony, and the count structure:
The Flores-Figueroa Knowledge Defense
The Supreme Court's 2009 decision in Flores-Figueroa v. United States requires the government to prove the defendant knew the means of identification belonged to a real, actual other person not merely that the identification was real. In immigration cases where a defendant used documents they believed were fabricated, in fraud cases where a defendant used data they believed was synthetic, or in any case where the defendant lacked specific knowledge that the identity information belonged to a living person, this element is genuinely contestable. We build Flores-Figueroa defenses through evidence of the defendant's actual understanding of the identification's origin.
Attacking the Predicate Felony
Because § 1028A requires that the identity theft occur during and in relation to a listed predicate felony, defeating the predicate count eliminates the § 1028A charge. If we successfully challenge the wire fraud, bank fraud, or immigration offense underlying the identity theft count, the § 1028A falls. We evaluate the predicate felony and the identity theft charge as a unified defense target, identifying the legal and factual vulnerabilities in both charges simultaneously.
Count Multiplication Challenge
Federal prosecutors sometimes charge multiple § 1028A counts based on a single continuing scheme, arguing that each use of identity information constitutes a separate offense. We challenge count multiplication through unit of prosecution arguments presenting evidence that what the government has charged as multiple offenses was a single continuous course of conduct that should be treated as one count. Each count eliminated reduces the mandatory consecutive exposure by 2 years.
Plea Negotiation Eliminating the § 1028A Count
Because the mandatory consecutive sentence is non-negotiable after conviction, the most critical plea negotiation objective in any § 1028A case is eliminating that count entirely in exchange for a plea to the underlying offense. Northern District prosecutors have varying willingness to drop § 1028A counts depending on the strength of their evidence, the severity of the underlying fraud, and the defendant's cooperation value. We pursue dismissal of the § 1028A count in every negotiation where it is achievable.
Facing Federal Identity Theft Charges in San Jose? Your First Steps
- Do not speak to IRS Criminal Investigation, Secret Service, or FBI agents without retaining federal defense counsel. The knowledge element in § 1028A cases is frequently built from voluntary statements. Invoke your right to silence immediately.
- Do not destroy any records, digital files, or communications. Evidence preservation is critical and evidence destruction is a separate federal felony that compounds your exposure dramatically.
- If you used another person's identification in an immigration or employment context, document everything you know about how you obtained the documents or information. Your actual knowledge of the identification's origin is the foundation of the Flores-Figueroa defense.
- If you have received a target letter from the Northern District U.S. Attorney's Office, contact The Bulldog Law immediately. Pre-indictment representation creates the opportunity to prevent the § 1028A charge from being filed at all.
- Understand that the § 1028A count is the most dangerous count from a sentencing perspective. Every negotiating resource should be directed first at eliminating it before addressing the underlying offense.
- Call The Bulldog Law at (888) 928-1609. The mandatory consecutive structure of § 1028A makes early, aggressive defense representation the most important investment in your case.
Federal Identity Theft Defense Across Santa Clara County
The Bulldog Law defends clients facing federal identity theft charges throughout Santa Clara County and the Northern District. Whether you need a federal identity theft attorney in San Jose, a § 1028A defense lawyer in Cupertino, or legal help for an identity fraud case anywhere in Silicon Valley, we serve your community:
Cupertino / Santa Clara Tech Corridor: Tech sector clients in Cupertino, Santa Clara, and Sunnyvale facing data breach or account takeover identity theft charges can reach The Bulldog Law through our Cupertino office. Federal cases are prosecuted at 280 South First Street, San Jose.
Mountain View / Los Altos: North County tech corridor clients can contact us through our Mountain View office.
Milpitas / North San Jose: Clients in Milpitas and North San Jose including those facing immigration-related identity theft charges can reach us through our Milpitas office.
We also serve clients in Palo Alto, Los Gatos, Campbell, Morgan Hill, Gilroy, and all surrounding Santa Clara County communities.
San Jose Office
The Bulldog Law San Jose, California Phone: (888) 928-1609
Frequently Asked Questions: 18 U.S.C. § 1028A in San Jose
Why does the 2-year sentence under § 1028A matter so much if I'm already facing a longer sentence?
Because it stacks on top of everything else. If you are convicted of wire fraud and sentenced to 3 years, and also have a § 1028A conviction, you serve the 3 years plus a mandatory consecutive 2 years 5 years minimum. With multiple § 1028A counts, each adds another mandatory 2 years. The judge cannot merge the sentences or run them concurrently.
This stacking effect transforms what might be a manageable sentence into a significantly longer one, which is precisely why eliminating the § 1028A count before conviction is the most important objective in every case where it is charged.
What did Flores-Figueroa v. United States decide and why does it help defendants?
In Flores-Figueroa (2009), the Supreme Court held that § 1028A requires the government to prove the defendant knew the means of identification they used belonged to a real, actual other person not just that the identification was real or valid. Before this decision, prosecutors argued they only needed to prove the defendant knew the identity information existed. After Flores-Figueroa, defendants who used identification without knowing it belonged to a living person including immigrants who used documents they were told were fabricated have a genuine defense to the § 1028A charge even when the underlying immigration or fraud offense is difficult to contest.
How is § 1028A used in Silicon Valley tech sector cases?
Technology companies in Santa Clara County hold vast amounts of user and employee personal data. When an insider an employee, contractor, or system administrator uses that data to commit fraud, the unauthorized use of real persons' identifying information satisfies § 1028A. The Secret Service and FBI's Cyber Division investigate these cases with corporate forensic support that has often already built a detailed evidentiary record before law enforcement is involved. Tech sector § 1028A cases in San Jose frequently involve account takeover schemes, credential exfiltration, and misuse of customer PII for financial benefit.
Can I receive a sentence below the mandatory 2 years under § 1028A?
After conviction, no. The 2-year consecutive sentence under § 1028A is one of the most rigid sentencing provisions in federal law. The only ways to avoid it are: winning an acquittal on the § 1028A count at trial, having the count dismissed before trial, or negotiating a plea in which the government agrees to drop the § 1028A count. Once a conviction is entered, the 2-year sentence is automatic and cannot be reduced by the judge under any circumstances. This is why we fight § 1028A harder than any other count in any indictment where it appears.
What is a target letter and what should I do if I receive one in San Jose?
A target letter from the Northern District U.S. Attorney's Office formally notifies you that you are the target of a federal grand jury investigation and that the government is considering charging you. It is not an arrest or a charge it is a critical opportunity.
Contact The Bulldog Law immediately upon receiving a target letter. Pre-indictment representation gives defense counsel the chance to evaluate the government's evidence, present exculpatory information to the AUSA, and in some cases prevent the § 1028A count from being included in an eventual indictment by demonstrating the knowledge element cannot be proven.